Now Available on Amazon Constitutional Sound Bites

The Law of Negligence

Criminal law punishes people for actions that harm all of society. Tort law protects private rights from injuries to individuals. This area of law is also often referred to as personal injury law.

A tort is an act that causes harm to another and is either intentional or negligent. Tort claims are based on the premise that individuals are liable for the consequences of their conduct if injuries to others occur. The result of a tort is often a civil lawsuit.

Intentional Torts

Intentional torts are those acts, which harm another purposefully. Examples of intentional torts:

  • Assault:  threatening to hurt someone
  • Battery:  hitting someone knowingly
  • Defamation: Spreading a malicious, harmful untrue rumor aware
  • False Imprisonment: Holding someone against their will without legal authority
  • Intentional Infliction of Emotional Distress
  • Many intentional torts are prosecuted as crimes as well. (O.J. Simpson is an example)

Negligent Torts

Negligent torts are generally not criminal since they are actions or omissions that result in harm, but the actor did not intend to cause harm. Harm, however, was the result. In the case of either an intentional tort or a negligent tort, the proper remedy to seek is money damages in a civil lawsuit.

Elements of Negligence

For someone to be guilty of a crime, the prosecutor must prove all elements of the criminal activity. For a defendant in a lawsuit to be awarded damages based upon negligence the plaintiff must prove the elements of negligence. These elements are:

  • Existence of a duty
  • Breach of that duty
  • Harm or damage to the plaintiff (Injury)
  • The damage was caused by the defendant’s breach of duty (Proximate Cause)

The Duty of Care

Many types of tortious conduct have particular names such as products liability or medical malpractice. Even though there are particular names, they are all negligence actions.

A consumer goods manufacturer has a duty to make a product that is not dangerous when used properly. A doctor has a duty to use best medical practices in treating his patients. A driver has a duty to operate his vehicle with the safety of others in mind. Starbucks has a duty not to serve coffee that could burn its customers. These are legal duties society imposes upon its members to benefit all.

The duty of care generally only extends to those individuals directly harmed and whose interaction with the conduct of the doctor, manufacturer, driver or barista is reasonably foreseeable.

Breach of Duty

Once it has been established that a duty existed, then it must be determined if that duty was breached. A duty has been breached when a defendant knowingly exposes another to potential damage. A defendant who did not realize he was exposing another to harm, when any reasonable person should have known it was likely someone could be harmed has breached his duty as well.

“Negligence” is not the same as “carelessness”, since a person might employ as much care as they are capable of, yet still fall below society’s standards. It is possible that someone is very careful about his or her conduct, and yet harm occurs.

Injury:  Harm or Damage to the Plaintiff

After a duty and a breach of that duty have been established, in a negligence case the plaintiff must demonstrate an injury to recover. The defendant will not be found liable if the plaintiff suffered no injury. Loss or injury can vary from case to case. It may be a physical injury, damage to the plaintiff’s property or it may be the suffering of emotional distress.

The only relief for the loss is a monetary award. Loss can be proven by medical bills, repair bills, cost of replacement property, income lost from missed employment or testimony about the pain and suffering caused to the plaintiff by the defendant.

Legal or Factual Causation

While there may have been a duty, a breach of that duty and the plaintiff suffered an injury, unless the defendant’s act or omission was the source of the injury the defendant is not liable.

In United States courts, this is known as “proximate cause”, and draws a difference between legal causation for which there is liability, and factual causation for which there may not be liability.

An act may cause injury to a plaintiff, but it was not reasonably foreseeable that the plaintiff would be injured. When an act sets off a chain of events that ultimately injures the plaintiff, but the plaintiff is far removed from the original act, the act is the factual cause and not the legal cause needed to impose liability on the defendant. *

The introduction for every law student on the matter of “proximate cause” is a 1928 New York case:  Palsgraf v. Long Island Rail Road Co.   Mrs. Palsgraf was on a railroad platform waiting to board a train.  A man was trying to get on a train leaving the station.  Employees of the railroad tried to help him, and a package he was carrying dropped to the tracks.  The package, unknown to the railroad employees contained fireworks that exploded.  The explosion knocked a large scale onto Mrs. Palsgraf some thirty feet away.  She was hurt.  The court determined it was not the railroad’s fault.   The decision set a standard that is still used today.

“Proximate cause” comes down to whether it is reasonably foreseeable that a given act will result in a particular injury.  Was the stable hand that ran out of nails responsible for losing the kingdom?

For Want of a Nail

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail

*This post discusses the typical legal premises for “causation”.  Novel financial calculations were used to determine “causation” in settling economic and property damage claims arising from the Deepwater Horizon oil spill on April 20, 2010, involving British Petroleum (BP).  There is a constant evolution in the law.

Comments

Trackbacks

  1. […] read entire article at: The Law of Negligence | David J. Shestokas […]

  2. […] [8]The settlement includes an element of “causation”, but the definition is different from a traditional legal case. “Causation” for the settlement is a set of varying financial calculations and comparisons. The settlement is non-traditional, and created an objective financial measurement rather than having to link together a chain of events, as in a normal negligence claim. […]

  3. […] [8]The settlement includes an element of “causation”, but the definition is different from a traditional legal case. “Causation” for the settlement is a set of varying financial calculations and comparisons. The settlement is non-traditional, and created an objective financial measurement rather than having to link together a chain of events, as in a normal negligence claim. […]

  4. […] The settlement includes an element of “causation”, but the definition differs from traditional legal cases. “Causation” for the settlement is a set of financial calculations. The settlement created an objective financial measurement rather than having to link together a chain of events, as in a normal negligence claim. […]

  5. […] each area of law has its own quirks.  The rules for a breach of contract, intentional torts, negligent torts, family law, or malpractice differ from each other.  An attorney should be familiar with not only […]